H..R. 5005 - THE HOMELAND SECURITY ACT OF 2002
Section-by-Section Summary of Immigration Provisions
TITLE I- Department of Homeland Security
Section 101 - Executive Department; Mission.
The primary mission of the Department is to-
Prevent terrorist attacks within the United States;
Reduce the vulnerability of the United States to terrorism;
Minimize the damage, and assist in the recovery, from terrorist attacks that do occur
within the United States;
Carry out all functions of entities transferred to the Department, including by acting as a
focal point regarding natural and manmade crises and emergency planning;
Ensure that the functions of the agencies and subdivisions within the Department that are
not related directly to securing the homeland are not diminished or neglected except by a
specific explicit Act of Congress;
Ensure that the overall economic security of the United States is not diminished by
efforts, activities, and programs aimed at securing the homeland; and
Monitor connections between illegal drug trafficking and terrorism, coordinate efforts to
sever such connections, and otherwise contribute to efforts to interdict illegal drug
trafficking
Section 102 - Secretary; Functions
Establishes the position of Secretary of Homeland Security as the head of the
Department of Homeland Security and sets forth the functions of that office.
Establishes the position of Special Assistant to the Secretary who will be responsible for
advising the Secretary on the impact of the Department's policies, regulations and actions
on the private sector; and creating private sector advisory councils to advise the
Secretary on homeland security policies that affect industry and associations.
TITLE IV- Directorate of Border and Transportation Security
SUBTITLE A- Under Secretary for Border and Transportation Security
Section 401 - Under Secretary for Border and Transportation Security
Establishes the position of Under Secretary for Border and Transportation Security to
head the Directorate of Border and transportation Security.
Section 402 - Responsibilities
Establishes that the Secretary, acting through the Under Secretary, will be responsible for the
following:
Preventing the entry of terrorists and the instruments of terrorism into the United States;
Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and
sea transportation systems of the United States, including managing and coordinating
those functions transferred to the Department at ports of entry;
Carrying out the immigration enforcement functions vested by statute in, or performed
by, the Commissioner of Immigration and Naturalization (or any officer, employee, or
component of the Immigration and Naturalization Service) immediately before the date
on which the transfer of the immigration functions, as set forth under ?441, takes effect;
Establishing and administering rules governing the granting of visas or other forms of
permission, including parole, to enter the United States to individuals who are not a
citizen or an alien lawfully admitted for permanent residence in the United States;
Establishing national immigration enforcement policies and priorities;
Except as otherwise provided, administering the customs laws of the United States;
Conducting the inspection and related administrative functions of the Department of
Agriculture transferred to the Secretary of Homeland Security; ? In carrying out the
foregoing responsibilities, ensuring the speedy, orderly, and efficient flow of lawful traffic
and commerce.
SUBTITLE C - Miscellaneous Provisions
Sec. 428 - Visa Issuance
The Secretary of Homeland Security, acting through the Secretary of State, is vested
exclusively with all authorities to administer and enforce all laws, and to issue regulations
relating to the functions of consular officers in the granting or refusal of visas, and shall
have the authority to develop programs of homeland security training for consular
officers. The Secretary of Homeland Security shall not have authority to alter of reverse
the decision of a consular officer to refuse a visa.
The Secretary of State is authorized to direct a consular officer to refuse a visa to an
alien if the Secretary of State deems such refusal necessary or advisable in the foreign
policy or security interests of the United States. The Secretary of State shall continue to
retain authority under specific areas of the INA. [101(a)(15)(A); 204(d)(2);
212(a)(3)(B)(i)(IV)(bb); 212(a)(3)(B)(i)(VI); 212(a)(3)(B)(vi)(II); 212(a)(3)(C);
212(a)(10)(C); 212(f); 219(a); 237(a)(4)(C)].
The Secretary of Homeland Security is authorized to assign employees of the
Department of Homeland Security to each diplomatic and consular post at which visas
are issued, unless the Secretary determines that such an assignment would not promote
homeland security.
Employees of the Department who are assigned to diplomatic or consular posts shall
perform the following functions:
(A) Provide expert advice and training to consular officers
regarding specific security threats relating to the adjudication of
individual visa applications or classes of applications;
(B) Review any such applications, either on the initiative of the
employee of the Department or upon request by a consular officer or
other person charged with adjudicating such application;
(C) Conduct investigations with respect to consular matters under
the jurisdiction of the Secretary of Homeland Security.
The Secretary shall develop performance standards for the Secretary of State to
evaluate, in consultation with the Secretary and as deemed appropriate by the Secretary,
the performance of consular officers in the processing and adjudication of applications
for visas.
When appropriate, employees of the Department may be permanently assigned to
diplomatic or consular posts. If the Secretary so directs, such employees shall participate
in the terrorist lookout committee established under section 304 of the Enhanced Border
Security and Visa Entry Reform Act of 2002.
The Secretary shall ensure that any employee of the Department assigned to these posts
shall be provided the necessary training, including training in foreign languages, interview
techniques, and fraud detection techniques, and other appropriate areas of study.
This section shall take effect on the earlier of the date on which the President publishes
notice in the Federal Register that Congress has received the memorandum of
understanding between the Secretary and the Secretary of State governing
implementation of this section, or one year after the enactment of this Act.
Section 429 - Information on Visa Denial Required to Be Entered Into Electronic Data
System
Whenever a consular officer denies a visa to an applicant, the fact of the denial, the basis
for such denial, and the name of the applicant shall be entered into the interoperable
electronic data system implemented under section 202 of the Enhanced Border Security
and Visa Entry Reform Act of 2002.
For any person who has been denied a visa, no subsequent visa may be issued to the
person unless the consular officer considering it has reviewed the information concerning
the person placed in the interoperable data system, has indicated on the person's
application that the information has been reviewed, and has stated for the record why the
visa is being issued or a waiver of visa ineligibility recommended in spite of that
information. The person may not be admitted to the United States without a visa issued in
accordance with these procedures.
SUBTITLE D- Immigration Enforcement Functions
Section 441 - Transfer of Functions to Under Secretary for Border and Transportation
Security.
Transfers the following five programs from the Commissioner of the INS to the Under
Secretary for Border and Transportation Security: Border Patrol; detention and removal;
intelligence; investigations; inspections. Included in the transfer are all the functions
performed by these programs immediately prior to the transfer, along with all personnel,
assets and liabilities.
Section 442 - Establishment of the Bureau of Border Security.
Establishes the Bureau of Border Security within the Department of Homeland Security
Establishes the position of Assistant Secretary of the Bureau of Border Security. The
position will head the Bureau and will report directly to the Under Secretary for Border
and Transportation Security:
(A) Qualifications for the position: at least five years of experience
in both law enforcement and management experience
(B) Duties: advise the Under Secretary of any policy or operation
that may affect the Bureau of Citizenship and Immigration; establish
policies and oversee the administration of the immigration functions
that were transferred to the Under Secretary of Border and
Transportation under Section 441 and then delegated to the
Assistant Secretary, or the functions that were vested in the Assistant
Secretary by law (Note: This provision seems to indicate that the
Under Secretary does not have to transfer the immigration provisions
into this Bureau.)
(C) Responsible for administering SEVIS and other programs
established under Ô41 of IIRAIRA to collect information relating to
foreign students and other exchange program participants and use
that information to carry out the enforcement functions of the Bureau
(D) Design and implement a managerial rotation program where
managerial and supervisory staff will gain experience in all the major
functions of the Bureau and work in at least one local office. Two
years after the transfer of the immigration functions, the Secretary will
submit a report to Congress on this program
Establishes the position of Chief of Policy and Strategy for the Bureau of Border
Security. Responsibilities include: consulting with personnel in local offices; researching
policy issues; analyzing and making policy recommendations on immigration enforcement
issues; and coordinating immigration policy with Chief of Policy and Strategy for the
Bureau of Citizenship and Immigration
Establishes the position of Legal Advisor to the Assistant Secretary of the Bureau of
Border Security. This position will provide legal advice to the Assistant Secretary and
will represent the Bureau in all exclusion, deportation, and removal proceedings before
the EOIR.
Section 443 - Professional Responsibility and Quality Review
Provides that the Under Secretary for Border and Transportation Security is responsible
for the following: investigations of misconduct, corruption and fraud involving Bureau
personnel, not including those subject to the Inspector General's investigations;
inspections of operations and assessment of the quality of the Bureau's operations and
the operations of each of its components; analysis of the management of the Bureau
Section 444 - Employee Discipline
Establishes that the Under Secretary for Border and Transportation Security may
discipline and terminate Bureau employees, who willfully deceive Congress or agency
leadership, pursuant to the policies and procedures of the FBI.
Section 445 - Report on Improving Enforcement Functions
Mandates a report by the Secretary detailing how the Bureau will enforce the
enforcement provisions of the INA. The report is due to the House and Senate
Committees on Appropriations and Judiciary one year after the Secretary is sworn in to
office
Provides that the Secretary shall consult with the following to determine the most
effective way to conduct enforcement operations: Attorney General; Secretary of State;
Director of the FBI; Secretary of Labor; Secretary of the Treasury; Commissioner of
Social Security; Director of EOIR; heads of States and local law enforcement agencies
Section 446 - Sense of Congress Regarding Construction of Fencing Near San Diego,
California
Completing the 14-mile border fence project set forth in Ï02(b) of IIRAIRA should be
a priority
SUBTITLE E - Citizenship and Immigration Services
Section 451 - Establishment of Bureau of Citizenship and Immigration Services
Establishes the "Bureau of Citizenship and Immigration Services" to be headed by a
Director. The Director will report directly to the Deputy Secretary for Homeland
Security, have 5 years management experience, and be paid at the same level as the
Assistant Secretary of the Bureau of Border Security.
The Director is required to meet regularly with an Ombudsman described below
Within one year of the effective date, the Director shall design and implement a
managerial rotation program where supervisors and managers gain experience in all
major functions of the bureau and work in at least one field office and one service center.
Authorizes the Director to institute a pilot program to eliminate backlogs in the
processing of immigrant benefit applications.
Transfers the following functions from the INS commissioner to the Director:
1. Adjudications of immigrant visa petitions;
2. Adjudications of naturalization petitions;
3. Adjudications of asylum and refugee applications;
4. Adjudications performed at service centers;
5. All other adjudications performed by the Immigration and
Naturalization Service immediately before the effective date specified
in section 455.
Establishes a position of Chief of Policy and Strategy for the Bureau who will make
policy recommendations on service issues and coordinate with the Policy Chief of the
Bureau of Border Security.
Establishes a position of Legal Advisor to the Director who will give legal advice and
represent the Bureau in visa petition appeal proceedings before the EOIR.
Section 452 - Citizenship and Immigration Services Ombudsman
Establishes a position of Ombudsman who will report directly to the Deputy Secretary
and who shall identify service problem areas, report these problems, propose changes
and monitor the local offices of the Ombudsman.
Requires the Ombudsman to have a background in customer service and immigration
law.
Section 459 - Report on Improving Immigration Services
Requires the Secretary to submit a plan to the House and Senate, no later than one year
after enactment, on how the Bureau will complete adjudications efficiently and fairly.
Section 460 - Report on Responding to Fluctuating Needs
Requires the Attorney General to submit to Congress a report on any changes in law
needed to ensure a prompt response to changes in immigration service needs.
Section 461 - Application of Internet-Based Technologies
Requires the Secretary to establish an Internet-based system that will allow persons
access to online immigration services information.
Section 462 - Children's Affairs
Authorizes the Director of the Office of Refugee Resettlement (ORR) of the Department
of Health and Human Services to take over the functions of the immigrations laws
formerly vested in statute, and performed by the commissioner, with respect to
unaccompanied alien children.
Provides that the ORR Director is responsible for, among others, the following:
(A) Developing a plan to be submitted to Congress on how to
ensure that qualified and independent legal counsel is timely
appointed to represent the interests of each such child, "consistent
with the law regarding appointment of counsel that is in effect on the
date of the enactment of this Act";
(B) Compiling, updating, and publishing at least annually a
state-by-state list of professionals or other entities qualified to
provide guardian and attorney representation services for
unaccompanied alien children.
Requires the ORR Director to coordinate with other agencies to ensure that
unaccompanied children are likely to appear for their hearings and are protected from
dangerous elements. The section also states that the Director shall not release such
children upon their own recognizance.
Encourages the Director of ORR to use the refugee children foster care system
Transfers the Department of Justice personnel and funding currently allocated to the
functions of caring for unaccompanied alien children to the Director of ORR
SUBTITLE F- General Immigration Provisions
Section 471 - Abolishment of INS
Abolishes the INS
Prohibits the Secretary from using the reorganization authority given to him under Ï502
of this Act to recombine the two immigration Bureaus into a single agency, or otherwise
combine, join or consolidate functions or units of the two bureaus with each other
?Permits the reorganization of the functions within a single Bureau
Section 472. Voluntary Separation Incentive Payments
Establishes the authority and procedures by which the Attorney General and Secretary
may make voluntary separation incentive payments to employees to the extent necessary
to carry out their restructuring plan
Section 473 - Authority to Conduct a Demonstration Project Relating to Disciplinary
Action
Establishes the authority and procedures by which the Attorney General and Secretary
may conduct demonstration projects within the first 5 years after the date of enactment of
this Act to determine whether changes in the employee disciplining policies would result
in improved personnel management
Section 475 - Director of Shared Services
Creates the position of Director of Shared Services within the Office of Deputy
Secretary
Makes the position responsible for the coordination of resources for the two immigration
Bureaus, including: information resources management; records and file management; and
forms management
Section 476 - Separation of Funding
Establishes separate accounts in the U.S. Treasury for the two immigration Bureaus
?Separates the budget requests for each Bureau
Establishes that fees for services, applications or benefits shall be deposited into the
account of the Bureau that has jurisdiction over the function to which the fee relates
States that fees are not transferable for purposes that are not set forth in Ð86 of the INA
Section 477 - Reports and Implementation Plans
Mandates report by the Secretary on the proposed division and transfer of funds
between the two immigration Bureaus. Report shall be submitted 120 days after effective
date of this Act to the House and Senate Committees on Appropriations and Judiciary
Mandates report by the Secretary on the proposed division of personnel between the
two immigration Bureaus. Report shall be submitted 120 days after effective date of this
Act to the House and Senate Committees on Appropriations and Judiciary
Mandates an implementation plan by the Secretary on the proposed division and transfer
of funds between the two immigration Bureaus. Report shall be submitted 120 days after
effective date of this Act and every 6 months thereafter until the end of FY2005 to the
House and Senate Committees on Appropriations and Judiciary
Establishes that the implementation plan should include details regarding the separation of
the two immigration Bureaus, including the following: organizational and field structure;
chain of command; procedures for interaction between the bureaus; fraud detection and
investigation; processing and handling of removal proceedings, including expedited
removal and applications for relief from removal; recommendations for comforting
amendments to the INA; establishment of a transition team; and methods to phase in
costs of dividing the administrative support systems
Mandates a status report on transition by Comptroller General. The report shall be
submitted 18 months after the transfer of the immigration functions to Under Secretary
for Border and Transportation Security, as set forth in Ò41 of this Act, and every 6
months thereafter until the full implementation of Title IV. The report will be submitted to
the House and Senate Committees on Appropriations and Judiciary. The report shall
contain the following: status of the transfer of immigration functions have been completed;
issues that arose as a result of the completed transfers; and identification of any issues
that may arise due to any future transfers
Mandates a study and a report on management by the Comptroller General. The report
shall be submitted 4 years after the transfer of the immigration functions to Under
Secretary for Border and Transportation Security, as set forth in Ò41 of this Act. The
report will be submitted to the House and Senate Committees on Appropriations and
Judiciary and shall contain the following: whether the transfer of functions from the INS
to the two Bureaus has improved operations, management, financial administration, and
record keeping; and recommendations for further improvements to the two Bureaus
?Mandates a report by the Comptroller General on whether the Bureau on Citizenship
and Immigration is likely to derive sufficient funds from fees to carry out its functions
without appropriated funds. The report shall be submitted 1 year after enactment of this
Act to the House and Senate Committees on Appropriations and Judiciary
Section 478 - Immigration Functions
Mandates a report by the Secretary on the impact the transfers made by this subtitle
have had on immigration functions. Report shall be submitted 1 year after the enactment
of this Act and every year thereafter to the President, the House Committees on the
Judiciary and Government Reform, and the Senate Committees on the Judiciary and
Government Affairs
Requires the report to include the following: aggregate number of immigration
applications and petitions received and processed; region-by-region statistics on the
aggregate number of petitions filed by an alien and denied, disaggregated by category of
denial and application of petition type; quantity of backlogged applications that have
been processed; the number awaiting processing and a plan for eliminating the backlog;
average processing period for immigration applications and petitions, disaggregated by
application or petition type; number and type of immigration related grievances filed with
the DOJ and the resolution, if any; plans to address grievances and improve services;
whether immigration-related fees were used consistent with legal requirements; and
whether immigration-related questions were answered effectively and efficiently
Stating that the sense of Congress regarding immigration services is that the transfer
should improve the quality and efficiency of immigration services and that the Secretary
should undertake efforts to guarantee that concerns over the quality and efficiency of
immigration services are addressed after the effective date
TITLE XI - Department of Justice Divisions
SUBTITLE A - Executive Office for Immigration Review
Section 1101 - Legal Status of EOIR
Establishes in the Department of Justice, the Executive Office for Immigration Review.
The EOIR shall be subject to the direction and regulation of the Attorney General under
section 203(g) of the INA, as added by section 1102 of this Act.
Section 1102 - Authorities of the Attorney General
Amends section 103 of the INA, as amended by this Act, by including a reference to the
Attorney General in subsection (a) and by adding a new subsection (g). Under the new
subsection (g):
(A) The Attorney General is granted such authorities and functions
under the INA and all other laws relating to the immigration and
naturalization of aliens as were exercised by the EOIR, or by the
Attorney General with respect to the EOIR, "on the day before the
effective date of the Immigration Reform, Accountability and
Security Enhancement Act of 2002." [The reference to this act
appears to be a drafting error, since it refers to the title of a previous
homeland security proposal that has not been passed.]
(B) The Attorney General is authorized "to establish such regulations,
prescribe such forms of bond, reports, entries, and other papers,
issue such instructions, review such administrative determinations in
immigration proceedings, delegate such authority, and perform such
other acts as the Attorney General determines to be necessary to
carry out this section."
Section 1103 - Statutory Construction
Nothing in this Act shall be construed to limit judicial deference to any actions of the
Secretary of Homeland Security or the Attorney General.
TITLE XV - Transition
SUBTITLE A - Reorganization Plan
Section 1503 - Review of Congressional Committee Structures
Directs each House of Congress to review its committee structure in light of the creation
of the new Department of Homeland Security.
TITLE XVI - Corrections to Existing Law Relating to Airline Transportation Security
Section 1603 - Allowing United States Citizens and United States Nationals as
Screeners
Amends Ò4935(e)(2)(A)(ii) of title 49 of the United State Code to allow nationals of the
United States to work as airport screeners. The term "national of the United States" is
defined by Ï01(a)(22) of the INA [Note: the text of the Act reads Ï101(a)(22) and is a
typo that will have to be corrected] as a citizen of the U.S. or a person who is not a
citizen but owes permanent allegiance to the United States
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